14 april 2011

Explanation of the ECJ opinion on internet blocking

The Advocate General at the European Court of Justice has given an opinion on internet blocking

The Advocate General at the European Court of Justice today said that no ISP can be required to filter the Internet, and particularly not to enforce the copyright monopoly, Rick Falkvinge writes. It is not a final verdict, but the Advocate General’s position. The Court generally follows this.

The Court has issued a detailed press release about the opinion, but it is rather complicated to understand for a layman.

On Slashdot, who reported about the opinion, I found a comment that I think explains the opinion in a very clear way. I take the liberty of copying it here.

One, no court may impose an ISP with an order to filter, in particular not because of enforcement of copyright monopolies;

Two, such filtering is a reduction of fundamental rights, so

Three, if laws are written requiring an ISP filter or block the internet, such laws must conform to very strict criteria that are applied to laws limiting fundamental rights. They must be effective, they must be proportionate, and they must be defensible in a democratic society. While this sounds like political wishywashing, it has some very specific meanings. It is useful to compare to what laws have been written to prevent terrorism: these laws are held to that standard, which the copyright industry wants badly to supersede. The Attorney General also goes into detail how such laws must be transparent and predictable.

What this does not say is that:

Four, no censorship must ever take place.

Five, no ISP may choose to limit what they present as ”The Internet”.

In conclusion:

Six, it has been the modus operandi of the copyright industry to threaten ISPs with ”block to our wishes or we’ll take you to court”. This has been their standard operating procedure for the past couple of years, in order to establish enough precendents to get them written into law. Today’s verdict, or potential verdict, gives those ISPs the power to say ”go play on the highway, parasites, we have an order from the highest possible court saying no court can force us to do that. We care more about our customers than about obsolete irrelevants”.

Seven, this is the highest court in Europe, referring to the (equivalent of) Constitution of Europe. Thus, there are no courts and no laws that can supersede this. No EU Directive can change this (potential) verdict. The way forward for the copyright industry appears permanently blocked; I hold it as absolutely improbable that they’ll get paragraphs in the referred European Charter of Human Rights that put the copyright monopoly before the sanctity of correspondence, of personal data, and freedom of information.

I do take comfort in that the pan-european road seems blocked; however the route for carefuly crafted national laws seems to be opened up here.
The Advocate General seems to say that Europe can’t protect you, once your government puts a proper law in place.
This must serve as a wake-up call for citizens all across Europe to finally start paying attention to politics.

Nevertheless, this is a very good indication that people whose job is to safeguard vital basic rights have started waking up to the fact that a lot of the judicial process has been kidnapped by private interests in a process now threatening very basic civic liberty.

Filesharing isn’t a good enough excuse to implement safeguards which as an unavoidable side effect gut freedom of speech and right of assembly, for instance.

I don’t see the argument that it is absolutely impossible, following this opinion, to have a law in an EU Member State which permits the copyright owners to demand that ISPs filter the downloads in some way. All that is necessary is that the law in question set out sufficiently precisely and clearly that copyright owners can do this. This can either be provided for in national law (following the lead of the earlier Promusicae judgment of the ECJ) or even in EU legislation which expressly requires or permits this to happen. The only way to block this from happening is to have EU legislation which explicitly rules it out.

I don’t agree with your skepticism (however sound such a position may be, given that we haven’t seen the outcome yet). The way you phrase it, ”all that is necessary” is for the law to be sufficiently precise and explicit. But the protection of fundamental rights and freedoms isn’t merely about formalities and avoiding vague laws; it’s about the substance of said laws, such as for what purpose you intend to limit those rights and freedoms (in this case, prevention of copyright infringement). And even if that purpose is found worthy of some limitations, it doesn’t follow that it may justify any limitations whatsoever.

National security, prevention of crime, and the protection of the rights of others (such as copyright) are all causes that may justify limiting the right to privacy under Article 8 of the European Convention on Human Rights. But even if searching the house of a suspected terrorist may be warranted in face of an imminent threat to national security, it doesn’t follow that the police can perform random house searches against the public in general just by quoting unspecified ”national security concerns”. Justifying said house searches by quoting unspecified ”copyright protection concerns” would of course be even less reasonable.

Let’s get more specific, and address the rights of one identified copyright holder alone. Would that be sufficient to search the house of everybody in the country in order to look for infringing copies? Obviously not. However, you may have a valid claim to search the house of a single suspect in the case of actual infringement, but when the identity of the infringer is yet to be established.

How does this relate to Internet filtering? First, by ”filtering” we aren’t talking about interfering with the private communications of just one suspect user accessing The Pirate Bay, but about interfering with the private communications of everybody talking to anybody else. You can’t apply a filtering mechanism to the Internet by merely looking at the connections you want to interrupt; you effectively need to look at every single connection merely to find the ones you want to interrupt. Thus my analogy with nationwide house searches.

Therefore, in my interpretation of the ECHR, letting a copyright holder order (whether via a court of law or otherwise) an ISP to inspect the communications of all its customers and interrupt those not appreciated by the copyright holder constitutes a limitation of fundamental rights and freedoms which cannot be justified even with respect to the ”rights and freedoms of others” condition. Not even everybody’s right to privacy trumps everybody else’s right to privacy (as in searching people’s houses to look for binoculars used to spy on others). It follows that neither does everybody’s copyright trump everybody else’s right to privacy.

This is not an unintended side effect of the Convention that you can (legally) work around by some obscure technical or procedural approach, such as outsourcing the decisions and dirty work of the ISP to a different jurisdiction; it’s the very essence of the Convention and any government bound by it must also implement it on its territory.

The mere possibility (or even likelyhood) that someone, somewhere may have committed an illegal act is not sufficient reason to file claims against everybody in general just to find out who did it. In this respect alone, copyright infringement is no different from theft. Patting down all your customers at the exit isn’t acceptable just because there are shoplifters. It’s not about the rights of the shoplifters, but about the rights of all your customers.

But then again, do courts and governments actually care about the ECHR? That’s the crucial issue to me.